Monday, 28 July 2014

According to recent press reports, the planned EU/Canada free-trade agreement (CETA), which was
due to be signed in September, is potentially now in difficulty because the
German government now objects to the inclusion of rules on investor/state
dispute settlement. This could have significant implications – for the EU/Canada
trade deal, for the EU/USA agreement which is also under negotiation (TTIP),
for the EU’s foreign trade and investment policy generally, and even for the
possible UK withdrawal from the EU (‘Brexit’).

Background

The EU and Canada have been negotiating a free trade deal
since 2009, and in October 2013 it was announced that a deal was agreed,
subject to technical drafting issues which were meant to be agreed over the
following months. No parts of the text of this agreement have been officially
released so far, but according to the EU’s press release, the agreement includes: liberalisation of most trade in goods,
bar a few sensitive items such as sweetcorn (on the EU side) and dairy products
(on the Canadian side); liberalisation of services; intellectual property
commitments (mainly entailing changes in Canada); and investment
liberalisation.

What would the impact of the free trade deal be? First of
all, a personal perspective. While all aspects of the EU’s external policies are
fascinating, I have a particular personal interest (though no financial interest) in EU/Canada relations, as a
dual citizen of the UK and Canada who has lived from many years in both
countries. A detailed survey of frequent visitors to both countries (my
children) concluded that an EU/Canada trade deal would benefit both sides, by increasing
market access in Canada for European biscuits, chocolates, cheese, ‘Keep Calm’
posters and John Lewis department stores, and increasing market access in the
EU for Canadian maple syrup, pancakes, bacon and Tim Horton’s donut shops. For myself, my main hope for an EU/Canada free
trade deal is that European supermarkets would be filled with Concord grapes
every September.

From a broader perspective, of course there are critics, on
both the EU and Canadian side, of all of these commitments made in the free
trade deal, due (for instance) to concerns about liberalisation and
privatisation of services and the impact of increased intellectual property
protection. There are also supporters of the deal among exporters who would
stand to benefit, but as usual they are not making their voices heard in the
public debate as effectively as the critics are.

My personal perspective aside, I think it’s rather early to
judge the merits of this trade agreement before the text is made available to
the public. But the criticism of the secrecy of the process is clearly well
founded: if the text was largely agreed last year, why not release those parts
of the text which have been agreed? Even if there is a case for confidentiality
during negotiations, there is surely
no case for confidentiality after
they are complete. Does it really take nearly a year to agree a few technical
details? If the negotiations weren’t really complete last year, why not just
admit that? The advocates of free trade don’t do themselves any favours with their
lack of transparency and (apparently) candour. Such tactics are bound to make more
members of the public suspicious of the content of the deal, and unwilling to
believe what the negotiators of the treaty say about it.

Investment issues

The most recent concerns from the German government (which
are widely shared by other governments, the public and some Members of the
European Parliament) have been about the investor/state foreign investment rules
in the planned treaty. These rules might not have raised so many concerns, if the
EU weren’t also negotiating a free trade treaty with similar foreign investment
provisions with the United States. Generally, the concern is that these provisions
will allow private arbitrators to issue binding rulings which will force the EU
and its Member States (as well as the Canadian side) to give compensation for
decisions which fall well short of seizing foreign investors’ assets without compensation,
but which merely impact upon the value of their investment in some way.

There is a widespread (and understandable) view that this is
unacceptable from a democratic point of view. Furthermore, there are problems
from the judicial point of view. It should be noted that the Court of Justice
of the European Union (CJEU) is generally wary of giving power to international
courts to rule on EU law issues (see most recently its ruling on the planned EU patent court); it would surely be
even less happy with the idea of giving such power to private arbitrators. Any
EU Member State, the European Parliament, the Council or the Commission could
ask the CJEU to rule on whether the draft provisions on this issue are
compatible with EU law. If the investment provisions indeed give private arbitrators
the power to give binding rulings on EU law, the only way that the CJEU would
approve the deal would be if the current judges were all replaced by flying pigs.

According to press reports, the investment provisions are considered
necessary in order to ensure that Canadians are willing to invest in the EU,
and vice versa. But this argument is undercut by the facts: according to the
expert joint study, a ‘scoping exercise’ on EU/Canada trade and investment relations, which
was carried out before the negotiations began, the EU was already the second
largest investor in Canada, and Canada was the fourth largest investor in the
EU. This was in the absence not only of an EU/Canada investment agreement, but
also in the absence of many bilateral investment agreements between individual EU
Member States and Canada.

The EU’s press release on investment issues attempts
to address these concerns, by listing a number of safeguards which the
agreement will contain. It would be useful to see the text of the agreement in
order to check these arguments. In any event, the press release undercuts its
own authority, by asserting several times that this is the first EU investment
agreement to contain such safeguards. Yes – but the EU’s authority over foreign
investment only dates from 2009, and so this will be the first investment protection
agreement which the EU signs. (The EU has signed treaties dealing with market access for investments before, but
investment protection is a broader issue). It’s rather like trying to praise
your current sexual partner by telling her that she’s giving you the best sex
you’ve ever had – while glossing over the fact that she’s the only partner you’ve ever had.

What next for the EU/Canada
trade deal?

Assuming that the press reports are correct, there are
several possibilities. First of all, there could be amendments to the
investor/state dispute provisions, to weaken their impact. Alternatively, the
provisions on investor/state dispute settlement could be removed entirely from
the treaty. More drastically still, the entire subject of investment could be
dropped from the treaty. Finally, the treaty itself could be dropped. This last
scenario does seem rather unlikely, given the significant market access for
both sides that would result from the remaining text of the treaty.

If there are no provisions on foreign investment in the
final CETA, the issue would still be addressed by the existing bilateral
treaties between EU Member States and Canada, and the EU has also given its
Member States authority to sign new treaties on this issue (subject to various
conditions) in legislation adopted in 2012.

What next for EU other
trade and investment negotiations?

As noted already, the EU/Canada trade negotiations are
something of a proxy for the EU/USA ‘TTIP’ negotiations now underway. Whatever
happens to the investment provisions in CETA will probably then set the
template for the TTIP.

More broadly, the EU is negotiating trade and investment
treaties with a number of countries in South America and South-East Asia, as
well as India and Japan. Any decision
taken as regards investment rules in relation to Canada could well have a
knock-on effect on those talks too, as well as the stand-alone investment
negotiations underway between the EU and countries like China and
Myanmar/Burma.

The impact on the UK’s
relations with the EU

Any major developments in the EU’s trade relations in the
next few years could impact significantly on the prospect of the UK’s potential
withdrawal from the Union. The reason for this is that one complaint against
the EU is that it ‘prevents Britain from exporting abroad’. Taken literally,
this is clearly wrong: the EU does not impose significant export controls on
any of its Member States (besides restraining some arms-related exports, which
largely reflect other international commitments in any case).

But a more nuanced version of this critique is essentially
accurate: since the ‘common commercial policy’ (ie trade policy with non-EU
countries) is an exclusive power of the EU, it’s not possible for any Member
States to have a more liberal (or indeed, a more protectionist) policy than the
EU as a whole. If the UK weren’t in the EU, it would be free to have a more
liberal trade policy, by signing free trade deals with more countries. (There
must be some people who instead would like the UK to have a more protectionist trade policy, but their
voices aren’t really being heard in this context).

Yet this argument is only valid if the EU’s common trade
policy is much less liberal than the UK’s individual trade policy would be. (It
also assumes that the UK would be successful in persuading third States to
negotiate trade deals with it; we can only speculate on this issue for now).
Already the EU has free trade agreements with many countries in Europe, Latin
America, the Middle East, Africa and the Caribbean. (It should be noted that many
of these treaties are called ‘association agreements’, but are in fact free
trade agreements, and are notified to the World Trade Organisation as such). It
also has a free trade agreement with South Korea, and is about to conclude a
deal with Singapore. As noted above, besides Canada and the USA, it is negotiating
such deals with Japan, India and other countries in Latin America and
South-east Asia.

However, on some occasions the EU is unable to reach trade deals
with third countries (negotiations have been going on fruitlessly for many
years with the Gulf States and Brazil and nearby countries, for instance). The
key question is whether dropping or amending the investment protection
provisions in ongoing negotiations will make it more or less likely for those
negotiations to be concluded, and for the final deal to be approved. If it’s
more likely to lead to agreed and approved deals, then one of the arguments against
Britain’s EU membership is significantly weaker. But if it makes it harder to
agree such deals, then the reverse would be true.

Finally, an interesting feature of EU/Canada trade relations, according to official Canadian statistics, is that Canada/UK trade makes up about 30-40% of Canada's total trade with the EU. But while Canada runs a persistent trade deficit with the rest of the EU, it runs a persistent trade surplus with the UK. Economists should investigate whether the future EU/Canada trade agreement would reduce the UK's trade deficit with Canada, perhaps as a trade-off for increasing the market access of Canadian goods and services to the rest of the EU. If so, this would be a very clear example of how British membership of the EU can give benefits to the UK which it would be very unlikely to achieve as a non-member.

Friday, 25 July 2014

PhD candidate on
immigration law at the Faculty of Law, University of Barcelona

In its recently
decided judgment in Noorzia,
the CJEU ruled on whether a national law which requires the sponsor and his/her
spouse to have reached the age of 21 by the date on which the application for
family reunification is submitted (rather
than by the date on which the decision on the application is made) is consistent with Art. 4 (5) of the
family reunion Directive (Directive 2003/86/EC). In a particularly brief
judgment, the Court answers to this question in the affirmative. In this post,
the judgment is criticised for being illiberal and outside the line
drawn by the Court in its earlier jurisprudence and the European Commission’s guidance on the application of the family reunification
Directive. Not least, the present article notices that the judgment departs
significantly from the Advocate
General’s opinion on the same case which was subject of an earlier
post in this blog.

The facts of the case can be summarised as follows: Mrs.
Noorzia applied for a residence permit in order to reunify with her husband who
resides in Austria. The application was rejected because although Mr. Noorzia
would reach the age of 21 by the time of the effective reunification, he was
under that age at the date on which the application was lodged. Indeed, the
Austrian law explicitly requires both spouses to be at the age of 21 at the
moment the application for family reunification is submitted. In these
circumstances, the national court referred the following question to the CJEU
for a preliminary ruling: ‘Is
Article 4(5) of Directive [2003/86] to be interpreted as precluding a provision
[of national law] under which spouses and registered partners must have reached
the age of 21 by the date when the application seeking to be considered family
members entitled to family reunification is lodged?’ (para. 11)

Art. 4 (5)
provides that ‘in order to ensure better integration and to prevent forced
marriages Member States may require the sponsor and his/her spouse to be of a
minimum age, and at maximum 21 years, before the spouse is able to join him/her’.

The
Court’s judgment

The Court
notes that by not specifying whether the minimum age condition should be met at
the time of the application or at the time of the decision on the application
for family reunification, the EU legislature intended to leave to the Member
States a margin of discretion. Furthermore, the Court adopts the view that the relevant
provision of the Austrian law does not prevent the exercise of the right to
family reunification nor render it excessively difficult but on the contrary
pursues the aim of prevention of forced marriages as persons who have reached
the age of 21 when the application is submitted are less likely to contract a
forced marriage and accept family reunification than persons who are under that
age at that date. Lastly, the Court holds that the provision of the Austrian
law at hand is consistent with the principles of equal treatment and legal
certainty and ensures that family reunification depends on circumstances
related to the applicant and not on the length of time which will be needed for
the consideration of the application.

In view of
the above mentioned considerations, the Court concludes that ‘the answer to the
question referred is that Article 4(5) of Directive 2003/86 must be interpreted
as meaning that that provision does not preclude a rule of national law
requiring that spouses and registered partners must have reached the age of 21
by the date when the application seeking to be considered family members
entitled to reunification is lodged’ (para. 19).

Comments

It is apparent
that the Court adopts a strict approach towards immigrants in this judgment. As
noted above, this approach departs from the Advocate General’s opinion in this case,
the European Commission’s guidance on the application of the Directive and to a
certain degree from the previous jurisprudence of the Court on family
reunification cases.

In
particular, the Commission through its guidance as well as the Advocate General
Paolo Mengozzi clearly
state that Art. 4 (5) should be interpreted to mean that the Member States may
require the sponsor and the spouse to be at the minimum age at the time of the
effective family reunification and not at the time on which the application is
lodged. This approach is based on a literal, teleological and systematic
interpretation of the provision at hand. Indeed, as the Advocate General
correctly notes, the provision of Art. 4 (5) itself gives the answer to the
question as it provides that the minimum age should be reached ‘before the
spouse is able to join’ the sponsor. Therefore,
taken that the spouse is only able to join the sponsor when a positive decision
with regards the application for family reunification is made, the crucial time
period is the time of the effective family reunification. This being said, the
Court’s approach that the provision gives a wide margin of discretion to the
Member States to decide whether they would set the time limit at the date of
the application or at the date of the decision on the application appears
groundless.

Not least,
the way that the Court deals with the teleological interpretation of the
provision seems problematic as well. First, it only refers to the prevention of
forced marriages and not to better integration which also constitutes a pursued
aim of the provision at hand. In that respect, it should be noted that long
family separations may in fact damage integration.

Second,
even with regards to the aim of prevention of forced marriages, the Court’s
approach fails to take into consideration the right of young couples to
contract a genuine marriage and enjoy family life as derived from Art. 8 of the
ECHR and Art. 7 of the ECFR. This being said, the Court should have at least
mentioned (in line with its prior case law) that an individual assessment of a
case is particularly important and that in case Member States are convinced
that there are no indicators of a forced marriage, they should allow family
reunification even if the minimum age requirement is not fulfilled at the time
of the submission of the application. On the contrary, in its judgment the Court
gives the impression that if the minimum age requirement is not fulfilled, the
application could be rejected even when it becomes obvious from other factors
that the marriage is genuine and that the aim for better integration is not
achieved by refusing the application.

Furthermore,
the systematic interpretation made by the AG is also missing in the Court’s
reasoning. As mentioned by the AG in his opinion, when the EU legislature
wished to set the time limit at the day of the submission of the application, it
did so explicitly. Therefore, in the provision at hand, the legislature’s aim
was to set the time limit at the day of the decision on the application for
family reunification. The Court does not adopt the same approach in its
judgment and merely reads the provision as giving a wide margin of appreciation
to the Member States to decide when the requirement at hand should be fulfilled.

Lastly, the
judgment can be also criticised for not being in line with the previous
jurisprudence of the Court on the family reunification Directive. In
particular, in Chakroun
the Court held that family reunification constitutes the general rule, the limitations
should be interpreted strictly and the margin of appreciation should be
exercised in a way that does not undermine the purposes of the Directive which
is to promote family reunification. In Noorzia,
the Court adopts the strictest possible approach towards the immigrants
disregarding the above mentioned principles and recognises a wide margin of
appreciation to Member States which in some cases may result in family
reunifications being particularly difficult to achieve.

In
conclusion, it should be mentioned that following the Commission’s guidance and
the AG’s opinion with regards to the interpretation of the family reunification
Directive, the EU family reunification regime seemed to follow a more
immigrant-friendly approach, balancing to a certain degree the strict
provisions of the Directive. Regrettably, in Noorzia the Court seems to take a step back adopting a formalistic
and strict approach with regards to the interpretation of the Directive. In
that respect, it should be added that the Court in the recently decided Dogan judgment (analysed here) chose to not answer the question regarding the integration condition in family
reunification Directive, losing another opportunity to rule in a favourable way
as regards family reunification of third-country nationals under the Directive.

Thursday, 24 July 2014

Having long pledged to repeal the Human Rights Act altogether should they obtain a majority of seats
in the House of Commons, some Conservative Party figures have recently
suggested that they support the UK’s possible withdrawal from the European Convention
on Human Rights (ECHR), or at least some sort of national parliamentary
override of the European Court of Human Rights (ECtHR) in domestic law (on the
details of these plans, see the discussion by Mark Elliott). Indeed, there is a widespread view that one
purpose of the recent cabinet reshuffle was to pave the way to this end, in
particular by removing the former Attorney-General, Dominic Grieve, who
apparently described the plans as a ‘car
crash’ (see further this analysis by Adam Wagner).

It is sometimes suggested that some or all such changes
would necessarily result in the UK having to withdraw from the European Union. Is
this the case?

Withdrawal from the
ECHR

Of course, it is entirely possible to sign up to the ECHR without being a Member State of the
EU: some 19 countries are in this
position. But there is no express rule the other way around (see further the
analysis in this House of Commons briefing paper). Certainly when the Communities (as they initially were) were
initially founded, there was no such expectation. Indeed, France was not a
party to the ECHR until the 1970s.

However, the role of human rights in EU law has evolved
considerably since then, first of all with the fleshing out of the role of
human rights as part of the ‘general principles of EU law’, then with the adoption
of the EU’s Charter of Fundamental Rights (binding since 2009) and most
recently with the development of plans for the EU itself to become a party to
the ECHR. Furthermore, in all the most recent enlargements of the EU, the existing
Member States expected the future Member States to sign up not only to the
ECHR, but all of its Protocols, and many other human rights treaties besides. The
EU is also a strong advocate of human rights treaties worldwide.

The practice relating to new Member States is underpinned by
Article 49 TEU, which states that EU membership is open only to States which respect
the EU’s ‘values’. Those values are defined in Article 2 TEU as including ‘respect
for human rights’, but there is no express mention of ECHR ratification. In
light of the recent practice as regards EU accession, there is undoubtedly an
established political principle that EU
Member States have to be parties to the ECHR when they join the EU. Logically
there must be a corollary principle that they remain ECHR parties after they become EU Member States, no matter
when they join the EU. But is this a legal
rule?

Article 7 TEU provides that Member States can be suspended
from EU membership if there is a ‘serious and persistent breach’ of the values
set out in Article 2. There is no power for the EU to fully expel a Member
State, but perhaps a country whose EU membership was suspended would be (even) more
willing to consider the option of
unilateral withdrawal from the EU, which is provided for in Article 50 TEU.

Short of the ‘red card’ of suspending EU membership, there
is also a possible ‘yellow card’ in Article 7(1) TEU. A Member State can be warned by the EU that there is a ‘clear
risk of a serious breach’ of the values set out in Article 2 TEU. Neither the
red card nor the yellow card provided for in Article 7 has ever been handed to
a Member State, and the general assumption is that they would only be used in
extreme situations like a military coup. The ‘red card’ would only be issued if
all other Member States voted for this, and it could always be argued that the
common law and/or a British Bill of Rights (if there were one, following ECHR
withdrawal) would prevent egregious human rights breaches from happening in the
UK.

There is no express mention of the ECHR in Articles 2, 7 or
49 TEU. However, there are several express mentions in Article 6 TEU, which
sets out the basic framework for internal human rights protection within the EU
legal order. First of all, Article 6(3)
states that human rights ‘as guaranteed by’ the ECHR are general principles of
EU law, although the Court of Justice of the European Union (CJEU) has made
clear recently (see the Fransson judgment, for instance), that this does not mean that the ECHR binds the EU as
such, at least until the EU actually signs up to that Convention. However, the
case law on the general principles frequently refers to the ECHR, and the CJEU
has stated for years that it must ‘take account’ of the ECtHR’s judgments in
that context.

Secondly, according to Article 6(2), the EU ‘shall’ accede
to the ECHR. A draft treaty to that end has been drawn up, and is being
reviewed by the CJEU; its judgment is expected later this year. If that ruling
is positive, then the treaty would be opened for signature soon thereafter. It
will need the unanimous support of all Member States (thus including the UK) to
be approved, as well as approval at the national level. It could be argued that
Member States are under a legal obligation to approve this accession treaty, in
order to facilitate the obligation of the EU to accede to the ECHR. At the very
least, it would be awkward if the UK ceased to be a party to the ECHR as a party
but had to approve the EU becoming one.

Thirdly, Article 6(1) provides that the EU Charter has the
same legal effect as the Treaties. While it is sometimes asserted that the UK
has an opt-out from the Charter, due to an ambiguous Protocol on this issue
(which also applies to Poland), this is simply not correct. In the NS judgment, the CJEU made clear that the UK was still subject to the
Charter in the same way as other Member States. (It is arguably still possible
that, due to the Protocol, the UK might not be fully bound by the Charter rules
on social rights, but those rights do
not generally appear in the ECHR).

The Charter contains many of the same rights as the ECHR,
and refers to it several times. In particular, Article 52(3) of the Charter
states that the Charter rights which ‘correspond’ to ECHR rights have the ‘same
meaning and scope’, and this has been referred to several times by the CJEU. While
a House of Commons committee recently suggested that UK legislation should
attempt to override the Charter (see my criticism of this bad idea here),
the government recently replied that it has a ‘duty to implement all EU law that applies
to it’, apparently implicitly ruling out the idea of a change to national law
in this respect.

Taken as a whole, it is therefore right to keep in mind – as
Joshua Rozenberg has pointed out – that in many respects EU law offers a stronger
degree of legal protection for human rights than the ECHR. However, this is only relevant to the extent that the two areas of law cross
over, ie a dispute falls within the scope of both EU law (otherwise the Charter
doesn’t apply at all) and the rights set out in the ECHR.

So, while there is no formal requirement that a current EU
Member State remain a party to the ECHR, and it would not be easy to enforce
such a requirement if it existed, there is a very close relationship between
the ECHR and EU law. The UK’s attempts to rid itself of the ECHR would be frustrated
by the continued partial application of that Convention within the UK, wherever
a dispute touched upon both EU law and ECHR rights. This would be exacerbated
if the EU signs up to the Convention in the near future, but the EU’s attempts
to this end will in turn be frustrated if the UK government or parliament refuses
to approve the relevant treaty. Indeed, that treaty is drafted on the
assumption that all of the Member States remain ECHR parties alongside the EU itself,
and there would be complex questions to answer in the event that any cases arose
concerning the UK, the ECHR and EU law once it were in force.

Taking all of these factors together, it is arguable that there
is an implicit de jure legal
requirement for all EU Member States to be party to the ECHR, otherwise the EU
could not carry out its tasks effectively. Possibly the CJEU will clarify this
issue in passing, in its upcoming judgment on the EU’s accession treaty to the
ECHR. At the very least, there would de
facto be enormous complications resulting from this scenario.

Amendment of domestic
law

It is much harder to argue that merely reducing the impact
of the ECtHR in UK domestic law is incompatible with EU membership. After all,
the UK and Ireland did not give domestic legal effect to the ECHR until the
last decade or so. (For an interesting discussion of the issues around parliamentary
supremacy and human rights protection, see Gavin Phillipson and Mark Elliott).

There will, of course, still be complications if this route
is taken. Every time that there is a link between EU law and the ECHR rights in
the UK, it would be possible to enforce the ECHR rules by the EU law route,
even if the UK parliament had legislated to ignore the ECtHR’s rulings. If the
UK parliament then tried to legislate contrary to EU law to avoid this, there
would be a direct conflict between the UK’s constitutional foundations and its
obligations as a Member State of the EU.

Conclusions

It would of course be legally consistent for the UK to
withdraw from both the EU and the ECHR, if that is what is intended. Some (like
Eurosceptic MEP Dan Hannan) are open about their intentions in this respect.
But there may be some who advocate withdrawing from the ECHR but not the EU as
such. Frankly, that position constitutes either a cynical attempt to trigger an
EU withdrawal by the back door (a sort of reverse Trojan Horse), or a negligent
approach to this issue.

Finally, one view is that the protection of human rights is
undesirable, at least for the United Kingdom. For example, this argument is put
by Dan Hannan, who asks the question “What have human rights ever done for the
UK?” Indeed, he asks that question three times, so he obviously thinks it is a
good one. But in fact, it is one of the stupidest questions in human history.

The purpose of human rights protection is clearly not to advance
the interests ofstates, but rather to constrain
those states from mistreating individuals. In particular, the ECHR (among many other
things) guarantees a fair trial, protects against torture or other inhuman or
degrading treatment, prevents arbitrary detention and ensures freedom of speech
and privacy. While Hannan suggests that the UK could solve all those problems
by itself, the fact is that it didn’t.
Every individual who has won a case against the UK in the ECtHR had to try
first (under the ECHR’s ‘exhaustion of domestic remedies’ rule) to obtain a
remedyin the UK courts, but failed.

And although it is true that the UK (and some other ECHR
signatories) does not breach the Convention as often as some other States, its
continued participation in the system is valuable not only as regards protection
of British citizens and residents, but as a contribution to supporting human
rights protection across the rest of Europe, and indeed worldwide. The
withdrawal of a large EU Member State from the world’s most sophisticated
system for the protection of human rights would be bound to deal a significant blow
to that system.

Does
EU law allow its citizens to seek the quickest possible means to qualify for a
professional activity, even if it means leaving out large areas of training
required by national law on access to the national profession that exercises
that activity? The
Court of Justice has addressed this issue recently in its judgment in Joined Cases C-58/13 and C-59/13 Angelo Alberto Torresi and Pierfrancesco
Torresi v Consiglio dell'Ordine degli Avvocati di Macerata.

Background: Mobility rights for lawyers under Directive
98/5/EC

In Italy, as elsewhere across Europe, there is a special
section of the roll of lawyers (elenco)
for those lawyers emerging from elsewhere in the European Economic Area who are
seeking to establish under their ‘home State professional title’ in Italy. This
follows the implementation of Directive 98/5/EC to facilitate practice of the
profession of lawyer on a permanent basis in a Member State other than that in
which the qualification was obtained. This Directive requires host State
Competent Authorities to register and automatically recognise the professional
titles of lawyers, whose professions are listed in Article 1(2) of the Directive.
Such lawyers, once registered, have the right to exercise their profession in
the host country, according to Article 5 of the Directive.

However, unlike other countries, in Italy 92% of the
registered European lawyers are Italian nationals. The Consiglio nazionale forense (Italian National Bar Council) has established
that nearly 3,500 such registered European lawyers were Italian nationals who
had obtained their professional title elsewhere in the EEA. 83% of these
lawyers had obtained their professional title, abogado, in Spain.

The via
spagnola

Spain, until recently, imposed no requirement for post–university
mandatory training before becoming an abogado.
One simply had to have a Spanish law degree, or one recognised as equivalent to
a Spanish law degree, and one could register with one of the eighty-three Spanish
Bars as an abogado. [There is now a
mandatory training period and State exam in Spain, the first of which was held
in 2014.]

As many Italians with a laurea
in guirisprudenza (Italian law degree) discovered, the Spanish authorities
often considered the Italian Law degree to be equivalent to a Spanish law
degree, and their degrees could be homologated more or less automatically.
Armed with their new Spanish recognised diplomas they could enrol as lawyers in
Spain, and thence return triumphant to Italy, where they were entitled (under
Directive 98/5/EC) to practise as Spanish lawyers. Such practise can include
dealing with matters of Italian law (subject to some deontological and other restraints).
So instead of undergoing the required Italian period of legal practice and
passing a State exam before being able to practice as an avvocato (Italian lawyer), which would take at least two years,
they could qualify abroad more speedily, and then return as lawyers from another
Member State and practice in Italy as such.

An abuse of EU law?

The Italian Bars were concerned at this practice and
considered it to be an abuse of European Law and argued even that it threatened
the Italian national identity which should be protected by Article 4(2) TEU.

The Torresi cases
were an opportunity to see if EU law could bear such an interpretation. The two
Torresis returned from Spain qualified as abogados,
and asked the Bar of Macerata (in Italy) to inscribe them on the special roll
for registered European lawyers. The Bar Council of Macerata took no decision
within one month (which was the time limit set by Italian law), and they then
turned to the Consiglio nazionale forense
(CNF) asking it to take action on their applications. The CNF was not convinced
that Article 3 of the Directive could be used in such circumstances which it
thought might constitute an ‘abuse of law’ and be contrary to Article 4(2) TEU

‘in that it permits circumvention
of the rules of a Member State which make access to the legal profession
conditional on passing a State examination, given that the Constitution of that
Member State makes provision for such an examination and that the examination
forms part of the fundamental principles of protecting consumers of legal
services and the proper administration of justice?’

Two questions were referred to the CJEU by the Italian CNF.
Preliminary issues of jurisdiction and capacity took up much of Advocate
General Wahl’s Opinion (§§19-83) and more than half of the Grand Chamber’s
ruling. The substantive legal issues dealt with aspects of the free movement of
lawyers under Directive 98/5/EC and are dealt with below.

The following questions were referred to the CJEU:

‘1. In
the light of the general principle which prohibits any abuse of rights and
Article 4(2) TEU, relating to respect for national identities, is
Article 3 of [Directive 98/5] to be interpreted as obliging national
administrative authorities to register, in the register of lawyers qualified
abroad, Italian nationals who have conducted themselves in a manner which
abuses EU law, and as precluding a national practice which allows such
authorities to reject applications for registration in the register of lawyers
qualified abroad where there are objective circumstances to indicate that there
has been an abuse of EU law, without prejudice to respect for the principles of
proportionality and non-discrimination and to the right of the person concerned
to institute legal proceedings in order to argue a possible infringement of the
right of establishment and, consequently, the possibility of judicial review of
the administrative action in question?

2. If
the first question should be answered in the negative, is Article 3 of
[Directive 98/5], thus interpreted, to be regarded as invalid in the light of
Article 4(2) TEU, in that it permits circumvention of the rules of a
Member State which make access to the legal profession conditional on passing a
State examination, given that the Constitution of that Member State makes
provision for such an examination and that the examination forms part of the
fundamental principles of protecting consumers of legal services and the proper
administration of justice?’

Were the Italian via
spagnola practices an abuse of EU law?

Advocate General Wahl

The Advocate General first acknowledged that ‘abuse of law’
was a recognised concept in EU law. Citizens could not fraudulently or
abusively rely on EU law. The concept of abuse had both objective and
subjective elements that had to be assessed by national courts, but without
compromising EU law. Objectively EU law
should not lead to the “wrong results” and ‘subjectively’ there should be no
manipulations or artificial fulfilment of the conditions of EU law so that one
could benefit from its provisions “abusively”.

In this case the Advocate General the Italian practice in
question showed the EU law was functioning correctly and achieving its correct aims.
Nothing in Directive 98/5/EC indicated that the EU legislature wished to allow Member
States to practise “reverse” discrimination against their own nationals. EU
citizens were entitled to seek out the most favourable jurisdiction in which to
qualify. This indeed was the rationale for “harmonising” the pre-conditions for
exercising the rights conferred by Directive 98/5/EC.

Fraud

If there was a legitimate fear of fraud, then, in those rare
cases, an investigation could be legitimate and Article 13 of the Directive, encouraging
close collaboration between competent Authorities in the relevant Member States
in such cases, should be used.

Italian national Identity (Article 4(2) TEU)

As to the threat to Italian national identity the Advocate
General was perplexed, how did the fact that an Italian used EU law rights to
become a Spanish lawyer and then practice in Italy as such, threaten Italy’s
legal order and compromise Italy’s national identity? The Italian Government,
at the hearing, had not supported the CNF on this point. The Torresi pair were
not seeking access to the Italian legal profession itself, but to the Italian
legal market as abogados. The
Parliament, Council, Spanish and Polish Governments, intervening , had all
considered that Italy maintained its rights to control access to the profession
of avvocato. How could Italy deny an abogado right to practice in Italy? It
was Spain’s competence to determine how an
abogado qualified and it would strike at the heart of Directive 98/5/EC to
allow such an interpretation.

Grand Chamber of the CJEU

The CJEU convened as a Grand Chamber to consider the case. Having disposed of the preliminary
jurisdictional issues they turned to the substantive questions of law. First
they pointed out their earlier case law interpreting Directive 98/5 as a
mechanism for the “mutual recognition of professional titles of migrant
lawyers”.

§38
In that context, Article 3 of Directive 98/5 undertakes a complete
harmonisation of the preliminary conditions required for the exercise of the
right of establishment conferred by that directive, providing that a lawyer who
wishes to practise in a Member State other than that in which he obtained his
professional qualification is obliged to register with the competent authority
in that Member State, which must effect that registration ‘upon presentation of
a certificate attesting to his registration with the competent authority of the
home Member State’ …

Presentation of the home State certificate by the migrant
lawyer was the sole condition applicable before registration in the host State.
The CNF argued that this was an abuse of law, as they were evading the Italian
training requirements.

Abuse of Law

The Court confirmed that abuse of law was a concept that EU
law recognised, and that Member States could take measures to prevent nationals
from ‘improperly’ circumventing national law. Echoing Advocate General Wahl
they considered that the concept had both objective and subjective dimensions.
If, despite formal observation of the conditions of EU law, the objectives of
that law were not met then the objective condition for abuse of law was met.
The subjective element required an intent to obtain an improper advantage from
EU law by ‘artificially’ complying with conditions set down.

Applying this test to the Torresi cases they declared:

§48

… it must be held
that the right of nationals of a Member State to choose, on the one hand, the
Member State in which they wish to acquire their professional qualifications
and, on the other, the Member State in which they intend to practise their
profession is inherent in the exercise, in a single market, of the fundamental
freedoms guaranteed by the Treaties …

It could not be an abuse of law as it was the intention and
purpose of EU law to create the opportunity for an EU citizen with a degree to
travel elsewhere, qualify there, and then return. The objective element of the
abuse of law test was not met. EU law intended the result complained of. The
fact that they were availing themselves of more ‘favourable’ legislation was
not enough to meet the subjective element of the test.

Italian national Identity (Article 4(2) TEU)

The Court confirmed that EU law must ‘respect the national
identity of Member States’ (Article 4(2) TEU). The Italian CNF argued that
Article 3 of Directive 98/5/EC allowed a circumvention of Article 33(5) of the
Italian Constitution as it allowed Italians to evade the national Bar exam,
thus allowing circumvention of rules that formed part of the Italian national
identity. The Court followed the Advocate General and confirmed that Article 3
of the Directive gave access to the legal market in Italy, not the Italian
profession of avvocato (lawyer),
therefore there was no evasion of national rules. They confirmed also that the
Italian Government, at the hearing, had accepted this.

Commentary

The Court in this ruling is supporting a view that EU law
allows for regulatory competition. There is a market formed of the national
regulatory regimes for legal services of the Member States. Citizens and
businesses can choose which regime to opt for. In doing so, it is true that
future lawyers can leave out aspects of training that would have been required
had they remained at home. But in making that choice there is no abuse, it was what
EU law was designed to do. It is really no surprise that States are no longer
fully sovereign within their territories. By the logic of the single market, borders
are supposed to be disappearing.

In this case, EU law, decided by the Member States, has
decreed that once admitted to the nominate legal professions, recognised in
Article 1(2) of Directive 98/5/EC, then those with the relevant professional
titles have the right to establish in another Member State, as set out in
Directive 98/5/EC, under their home State professional titles. This means that
it cannot be an abuse of law to exercise these rights. The purpose of the rule
was to permit that very mobility.

Member States do not have to have identical rules for
accessing the profession of lawyer. The content of education is a matter that
is, in the main, reserved to Member States. Equally the range and depth of
reserved legal activities varies across the EEA. So some States allow
non-lawyers to practise in areas that, in other States, are reserved for
particular legal professions. It is recognised that access to legal practice
varies profession by profession, country by country, across the EEA. This causes
complications when lawyers move across borders as their training and range of
activities will be different. For the consumer of legal services this is great
as they can have a wide choice of expertise to draw upon. For the regulators it
is uncomfortable. They must co-ordinate with professional regulators from other
Member States. They must learn and understand the regimes operating elsewhere. They
must co-ordinate should disciplinary issues arise, and they must consult each
other should complexities or misunderstandings arise when the migrant lawyer is
seeking access to a host State legal market. All this interaction encourages
pan-European engrenage (enmeshment)
at many levels.

In the Torresi
case the Consiglio nazionale forense
did not raise the issue of Article 10 of the Directive. This allows a migrant
lawyer who has been practising law under the home State title for three years,
to convert into an avvocato. Such lawyers
must show that they have

effectively and regularly pursued for a period of at
least three years an activity in the host Member State in the law of that State
including Community law.

These
lawyers are exempt from any aptitude test or adaptation period. Thus a few
years down the line, the Italians who have taken the via spagnola will be easily incorporated into the Italian legal profession.
This was probably not raised at the Court of Justice, as it had already
indicated in its earlier case law that such access did not infringe the
principle of non-discrimination.

In Luxembourg v Parliament and Council,
Luxembourg had complained that Article 10 allowed the practice of national law
by migrant EEA lawyers, without regard to any training requirements in national
law. Luxembourg lawyers had to undertake a whole raft of training in national
law, so why should the migrant lawyers be exempted? Furthermore could
Luxembourg not protect its consumers of legal services against these untrained
hordes of migrant lawyers? The Court found that there were sufficient safeguards
in the EU legislation to protect consumers, and that national and migrant
lawyers were not in exactly comparable situations, so discrimination had not
arisen. The migrant lawyers had various restraints imposed upon them by the
Directive itself. Thus there was no issue of ‘unequal treatment’ that EU law
might have sanctioned.

The court,
in Torresi , has re-affirmed the
primacy of the Single market. It is there to benefit citizens and businesses in
Europe, not to make life easy for the national regulators of economic activity.
Future European lawyers can pick and mix their training and, once qualified,
can decide where in Europe to practice. The forces unleashed by this
liberalization fosters an ‘ever closer’ Union for providers of services, their
consumers and also for the regulators of legal services.

Article 16(2) of
Directive 2004/38 (the EU citizens’ Directive) states that third country
national family members of EU citizens who have moved to another Member State
can claim permanent residence rights (giving greater protection against expulsion,
for instance if they claim social benefits) if they have ‘legally resided with’
that EU citizen ‘for a continuous period of five years’. Can they still invoke
that provision, when, before the expiry of the five years’ period, the couple
decided to live apart and cohabitate with different partners? Furthermore, can
the third country national claim this right despite the fact that the continuous
period of five years occurred before the transposition of the Directive?

The Court of Justice
gave an answer to these crucial questions in a judgment of 10 July, Case
C-244/13, Ogieriakhi v Minister for
Justice and Equality.

The facts

In May 1999 Mr
Ogieriakhi, a Nigerian national, married Ms George, a French national living in
Ireland. From 1999 till 2001 the two lived together in Ireland. In August 2011
Ms George moved out and begun to reside with another man. Soon after Mr
Ogieriakhi started to reside with Ms Madden, an Irish citizen with whom, after
a while, he had a child. The divorce between Mr Ogieriakhi and Ms George
occurred in January 2009 and in July of the same year Mr Ogieriakhi and Ms
George got married. The issue Mr Ogieriakhi is complaining about goes back to
2007 when, after the deadline for transposition of Directive 2004/38 into
national law (which was 30 April 2006), he applied for permanent residence in
Ireland on the ground that he had completed a continuous period of legal
residence for five years (between 1999 and 2004) as a result of his marriage
with Ms George.

The Irish Minister for
Justice and Equality refused his application on the ground that he did not
exercise his right of residence under the Directive because there was no
evidence of the fact that during the relevant period his wife was still
exercising her right of movement and residence in Ireland. As a result of this
refusal Mr Ogieriakhi was dismissed from his job because, according to the
authorities, he had not any right of residence in Ireland. However, in 2011,
the Minister for Justice and Equality reviewed its decision of 2007 and granted
him a right of permanent residence following the Lassal judgment (according to which residency prior 2006 may, in
principle, be regarded as meeting the criterion of a continuous period of
residence of five years).

At this stage Mr
Ogieriakhi brought an action for damages before the High Court in order to
obtain compensation for the damage he suffered (dismissal from his job) as a
result of the failure to transpose the Directive (relying on the case of Francovichand others). The national
court found that, in order to succeed in the action, Mr Ogieriakhi had to show
that at the time of his dismissal from his job he enjoyed a right of residence
for a continuous period of five years. In order to assess whether this was the
case, the national court stayed proceeding and asked the Court of Justice whether
Art 16(2) of the Directive had to be interpreted as meaning that a third
country national who, during the a continuous period of five years before the
transposition date for the Directive, resided in a Member State as the spouse
of a Union citizen working in that Member State, must be regarded a having
acquired a right of permanent residence even though, during that period, the EU
spouse decided to reside with another person and did not provide anymore the
home in which the third country national lived.

The Court’s judgment

The Court started its
reasoning by looking at Art 16(2) of Directive 2004/38. It pointed out that the
current interpretation that should be applied to this article, following the Lassal judgment, is that the continuous
periods of five years must be taken into account even when accumulated before
the transposition of the Directive, when in accordance to the earlier law
instruments that the Directive itself “codified, revised and repealed”. In other words, in order to being able to
rely on Art 16(2) for continuous residence accrued before the transposition of
the Directive, the third country national has to satisfy both the conditions
laid down in Art 16(2) of the Directive and the conditions laid down in the
piece of legislation in force – in this case Regulation 1612/68 on the free
movement of workers - during the period in which the actual residence
occurred.

According to this
preamble, the Court first started to look at whether the conditions under the
Directive were fulfilled. It pointed out that the acquisition of a right of
permanent residence by third country national EU family members depends a) on
the fact that the Union citizen himself or herself satisfies the conditions
laid down in Art 16(1) of the Directive (namely having resided for a continuous
period of five years in the host Member State) and b) on the fact that the
third country national family member has resided with him or her for the above
period. According to the Court requirement a) was indisputably satisfied as it
was proved that throughout the relevant period Ms George fulfilled the
condition laid down in Art 16(1).

As far as requirement
b) was concerned, the Court found that the relevant issue to assess was whether
the separation of the spouses during the period concerned precluded the
fulfilment of the condition. To give an answer to this point, the Court relied
on the cases of Diattaand Iida, which stated that what matters is
the existence of the marital relationship, even if the
spouses are separated. In this case, although Ms George and Mr Ogieriakhi lived
separately with different partners, they were still married during the relevant
period from 11 October 1999 and 11 October 2004 and that was enough to comply
with Art 16(2) and not to make Mr Ogieriakhi lose his status of family member
accompanying or joining a EU citizen in the host Member State.

Following the opinion of A.G. Bot, the Court stressed also another interesting point supporting its
argument. The Court pointed out that interpreting Art 16(2) as being fulfilled
even when the EU and third country national spouses are still married but live
with other partners is consistent with the scope of the Directive itself. As a
matter of fact, a more restrictive interpretation of Art 16(2) would not be consistent
with Art 13 and 18 of the same Directive, which grant more favourable residence
rights to third country nationals who divorced
from their EU citizen spouses (Art 13 is about retention of the right of
residence by family members in the event of divorce, annulment of marriage or
termination of registered partnership. See in particular the conditions laid
down by Art 13(2)(a)(b)(c)(d). Art 18 states that the family members to whom
the conditions of Art 13(2) apply shall acquire the right of permanent
residence after residing for five consecutive years in the host Member State).

Finally, the Court
moved on to evaluate whether the conditions laid down in Regulation 1612/68
were fulfilled. In particular, the Court looked at whether the condition
imposed by Art 10(3) – the EU worker having available for his or her family a
family housing considered as normal for any worker employed in the same region-
is satisfied in case the EU worker and the third country national family member
live separately and the new house of the latter is neither supplied nor
provided for by the EU worker (note that the citizens’ Directive has since
removed this condition). To answer this question the Court followed the Advocate
General’s opinion and relied on the Diatta
case, once again specifying that there is no implied requirement for the family
to live permanently under the same roof.

Furthermore, still in
line with A.G. Bot, the Court referred to the case of Commission v Germany (which had interpreted Article 10(3) of that
Regulation) and recalled that the requirement to have available housing regarded
as normal applies only as a condition under which each member of the worker’s
family is permitted to come and live with him or her. This means, as A.G. Bot
explained more extensively in the opinion, that if the housing regarded as
normal at the beginning of the cohabitation does not fulfil this requirement
anymore as a result of a new event- such as in this case the separation of the
couple and the new relationship of Ms George with another man- this cannot lead
to discrimination between Member State’s nationals and nationals of other
Member States.

In light of these
considerations the Court concluded that even when the spouses decided to
separate and reside with new partners, the third country national family member
who has resided for a continuous period of five years in a Member State as the
spouse of a EU citizen can acquire the right of permanent residence even if the
period of residence occurred before the transposition of the Directive.

Finally, on state
liability, the Court concluded that the simple question for preliminary ruling
on a matter concerning the transposition of EU law must not, alone, be
considered a decisive factor in determining whether there was an obvious
infringement of EU law on the part of the Member State.

Comments

If we look at its
outcome, this can be considered a good judgment. As a matter of fact, the Court
of Justice ended up clarifying the scope of Diatta
by specifying that a third country national can be granted the right of
permanent residence not just simply when he is separated and not living anymore
with the EU citizen but even when they both cohabit with other partners. The
broadening of Diatta can only be
welcomed, especially by those who believe that the state should not be
interested in how a family decides to arrange its family life (for example
whether they prefer to live together or not) as long as the marriage bond is
not broken. Although the Court referred back to spouses who were separated
before the deadline to transpose the citizens’ Directive, its interpretation is
still relevant to those who were separated after that deadline, in light of its
reference to the Iida judgment (which
had already applied the Diatta
judgment to the definition of ‘spouse’ in the citizens’ Directive) and its
constant case law (see the Metock judgment) insisting that the Directive does not lower standards as compared to
the previous legislation.

On the other side, the
reasoning proposed by the Court lacks of clarity in some points. This is
particularly evident when the Court refers to Commission v Germany. The wording of the Court does not immediately
make clear the reason why this case is relevant in this context. As a matter of
fact, it is by looking at the more extensive explanation of the Advocate General
that it is possible to understand its relevance in the circumstances at stake
(see the above discussion).

It is also worth
mentioning that the Court lost a chance to specify clearly the meaning of Art
16(2) of the Directive, particularly with regard to the word “with”. According
to the Advocate General the word “with” should not be interpreted literally.
Hence, it does not mean that the third country national must have lived
together with the EU citizen for the entire period of five years but it is
enough that he or she has accompanied or joined the EU citizen in the host
Member State, despite the fact that they decided [not?] to live together for
the entire period of five years. This specification would have been
particularly useful if we consider that cases not necessarily involving third
country national spouses will be possibly referred to the Court of Justice.

As a matter of fact,
as things stand now, the Court will be easily able to rely on Diatta, if needed, to state that a
spouse should not necessarily live together with the EU citizen in order to
acquire the right of permanent residence. However, as far as other family
members are concerned, a similar interpretation of Art 16(2) will result in the
same outcome: no family member has to live together with the EU citizen in
order to acquire the right of permanent residence in the host Member State.

To conclude, despite
these margins for improvement, this judgment should be considered a good and,
in a way, totally predictable judgment as it falls within the lines traced
already by the Court in Lassal, Diatta and Commission v Germany. The interesting rationale upon which Ogieriakhi is based is, as A.G. Bot
clearly pointed out in the opinion, to promote social cohesion and integration
not just of the EU citizen but also of the third country national family member.
This is the key purpose of the Directive that the Court should bear in mind for
future reference in order to apply the same rationale to potential similar
cases.

Can
immigration detainees be held in prisons? Can they be confined alongside
ordinary prisoners? Last Thursday 17 July 2014, in its decisions on the joint
cases of Bero & Bouzalmate (C-473/13 & C-514/13) and the
case of Pham (C-474/13), the Court of Justice of the European
Union (CJEU)
rendered its opinion on this practice. These judgments are the ninth and tenth times
that the Court has interpreted the provisions of the EU Returns Directive, the previous one being the Mahdi case, which was decided in early June 2014.

Most of the
Luxembourg case law on the Returns Directive has dealt with pre-removal detention.
The Court has ruled on the length of detention (Kadzoev case), the relation between (administrative) pre-removal detention and
criminal incarceration (El Dridi and Achughbabian cases), detention during asylum procedures (Arslan case), and procedural standards on reviewing and extending detention (G&R and Mahdi cases). In the Bero &
Bouzalmate and Pham cases, the
Court interpreted the Directive’s provisions on conditions of detention for the
first time.

Questions referred to the CJEU for a
preliminary ruling

The
questions referred to the CJEU addressed the places used for detention in
Germany. It is regulated under article 16(1) of the Returns Directive, which
provides that:

“Detention shall take place as a rule in specialized detention
facilities. Where a Member State cannot provide accommodation in a specialized
detention facility and is obliged to resort to prison accommodation, the
third-country nationals in detention shall be kept separated from ordinary
prisoners.”

All three
requests for a preliminary ruling concerned pre-removal detention carried out
in prison rather than a specialized immigration detention facility. Ms. Bero
was detained alongside ordinary prisoners in Frankfurt prison (in Hesse federated
state) for almost a month, while Mr. Bouzalmate was confined in a separate area
devoted to immigration detention in Munich prison (in Bavaria federated state)
for three months.

In Germany,
immigration detention falls under the competency of federated states (Länder). The reason Ms. Bero and Mr.
Bouzalmate were confined in jails was that Hesse and Bavaria federated states (and
several others) do not dispose of special immigration detention centers. Such
practice is based on the German Residence Act. Its section 62a(1), which transposed
article 16(1) of the Directive, sets out that:

“As a general principle, custody awaiting deportation shall be
enforced in specialized detention facilities. If a Land has no specialized
detention facilities, custody awaiting deportation may be enforced in other
custodial institutions in that Land; in such cases the persons in
detention awaiting deportation shall be accommodated separately from prisoners
serving criminal sentences.”

In the joint
cases of Bero & Bouzalmate, the referring courts asked
the CJEU to determine whether under article 16(1) of the Returns Directive a
member state is required, as a rule, to detain non-citizens pending removal in
a specialized detention facility if such facilities exist in only part of the
federated states of that member state (Bero
& Bouzalmate, § 13 and 21).

Likewise,
the Pham case concerned a pre-removal
detention of over three-months being carried out in prison. However, Ms. Pham
signed a written declaration in which she consented to being confined in a
prison together with ordinary prisoners because she allegedly wanted contact
with her compatriots who were detained there. The German Federal Court of
Justice referred to the Luxembourg judges a question whether it is consistent
with article 16(1) of the Returns Directive to confine a migration detainee together
with ordinary prisoners if they consent to such accommodation (Pham, §13).

The CJEU’s decisions

In both
judgments the Court followed the Advocate General Bot's Opinion delivered at the end of April 2014.
Accordingly, a member state cannot rely on the fact that there are no
specialized detention facilities in a part of its territory to justify keeping
non-citizens in prison pending their removal (Bero & Bouzalmate).
The same rule applies even if the migration detainee has consented to being
confined in penitentiary (Pham).

In the
joint cases of Bero & Bouzalmate the Court held that article
16(1) of the Return Directive requires a member state, as a rule, to detain
migrants pending removal in a specialized detention facility even if the member
state has a federal structure and the federated state competent to decide upon
and carry out such detention under domestic law does not have such a detention
facility (Bero & Bouzalmate, § 33). This conclusion was
based principally on two arguments.

At the
outset, the Court observed that the first sentence of article 16(1) sets out
the principle that pre-removal detention is to take place in specialized
detention facilities. The use of prisons allowed under the second sentence of article
16(1) represents a derogation from that principle, which, as such, shall be
interpreted strictly (Bero & Bouzalmate, §25).

The
interpretation of that second sentence was focused on in the Opinion of the Advocate
General. The Advocate General observed that there were significant differences
in the wording of article 16(1) between the different language versions. Pursuant
to the English version, migrants may be held in prisons if member states cannot provide accommodation in a specialized
centre. In contrast, the German version allows member states to use prisons if
there are no specialized facilities. According
to the Advocate General, the German version of the second sentence of article
16(1) was incorrect. It would allow states to rely on the lack of specialized
facilities to derogate from the principle laid down in the first sentence and
thus deprive it of all effectiveness (AG’s Opinion, § 63-80).

Secondly,
the Court addressed the federal structure of the country. It held that the
obligation laid down in the first sentence of article 16(1) requiring detention
to take place as a rule in specialized detention facilities is imposed upon
member states as such, regardless of the states’ internal administrative or
constitutional structures. Thus, the fact that in certain federated states of
the member state, the competent authorities have specialized facilities at
their disposal cannot amount to sufficient transposition of the Returns
Directive if the competent authorities of another federated state of that
member state lack such facilities (Bero & Bouzalmate, §30).

The Court’s
conclusions in Bero & Bouzalmate were further developed in the
case of Pham. The Court ruled that the
second sentence of article 16(1) of the Directive does not allow member states
to detain migrants pending removal in prison together with ordinary prisoners
even if they consent thereto (Pham, §
24).

More precisely,
in the case where the derogation in the second sentence of article 16(1)
applies, i.e. where a member state cannot provide accommodation in specialized
detention facilities and resorts to prison, immigration detainees shall be kept
separated from ordinary prisoners. The Luxembourg judges observed that under
the Directive, the obligation for migration detainees to be kept separated from
ordinary prisoners is not coupled with any exception. Moreover, they stressed
that the separation requirement is more than just a specific procedural rule
for carrying out detention in prisons and constitutes a substantive condition
for that detention, without compliance of which such detention would, in
principle, not be consistent with the Directive (Pham, § 17, 19 and 21).

Comments

Ever since
the adoption of the Returns Directive in 2008, the terms of article 16(1) have warranted
an interpretation. The Court’s judgments in Bero
& Bouzalmate and Pham are thus welcome. What impact will
they have on the places where migrants are detained across Europe? Several
points need to be fleshed out.

First of
all, the judgments will obviously trigger changes to the German practice of
using prisons for immigration detention purposes. Currently, as the recent
report by the Pro Asyl describes, in ten out of sixteen federated German
states (Baden-Württemberg, Bavaria, Hamburg, Hesse, Lower Saxony, Mecklenburg-Western
Pomerania, North Rhine-Westphalia, Saxony, Saxony-Anhalt, and Thuringia) migration
detainees are held in prisons. However, in line with the judgment in Bero & Bouzalmate, a federal state like Germany is not obliged to set up
specialized centers in each federated state. However, it shall ensure via, amongst others, cooperation agreements
between federated states that the competent authorities of a federated state
that does not dispose of such facilities can place migrants in specialized
facilities located in other federated states (Bero & Bouzalmate, §31).
At present the ten federated states that do not have specialized centers use
some sixteen prisons with the total immigration detention capacity exceeding
800. To compare, besides airport detention facilities, there are only four
specialized detention facilities in Germany—Berlin-Köpenick, Eisenhüttenstadt,
Ingelheim, and Rendsburg—with a combined capacity of around 450.

The Court’s
reasoning in Bero & Bouzalmate that the absence of specialized
detention facilities in a federated state cannot in itself justify confining
migrants in prisons in that federated state is of relevance to other federal states,
like Austria and Switzerland (which is bound by the Returns Directive as a Schengen associate). Arguably, it can have a broader application and
impact practice based not only on the administrative structure of a state but
also the geographical location of detention facilities. This would be in line
with the Advocate General’s view that if a country has a specialized detention
facility in its territory, with sufficient detention capacity, it shall order the
detention of the person concerned in that facility, the geographical situation
of that facility being of little importance (AG’s Opinion, §144). Thus, it
appears that authorities would not be able to rely on the derogation clause in
the second sentence of article 16(1) and hold migrants in prison, if there is
available space in a specialized facility, even if it is located far away.

When would a
state thus be able to rely on the second sentence of article 16(1) of the Returns
Directive? When can authorities be justified in claiming that they “cannot”
detain migrants in a specialized detention facility and instead hold them in a prison?
In his Opinion, the Advocate General has explained when this derogation clause
might be used. He reads it in conjunction with article 18 of the Directive.
Under article 18(1) the Directive explicitly allows states to derogate from
article 16(1) in “emergency situations,” i.e. the situations in which “an
exceptionally large number of third-country nationals to be returned places an
unforeseen heavy burden on the capacity of the detention facilities” of a member
state. According to the Advocate General, it is possible to infer from the wording
of “emergency situations” related to the influx of migrants under article 18(1)
the nature of other circumstances that states may invoke to rely on the
derogation clause in article 16(1). Thus, a member state may order detention in
prison “only if there are exceptional and legitimate grounds, such as those
alleging necessity, showing uncontestably that the weighing up of interests
requires that solution” (AG’s Opinion, § 124-136).

The
judgments in Bero & Bouzalmate and Pham, read together with the Advocate General’s detailed views,
therefore considerably restrict the use of prisons for confining migrants.
However, as the research by the Global Detention Project reveals, police stations rather
than prisons are most frequently used in Europe as a substitute for specialized
detention facilities. This practice has been regularly criticized by the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT). The CPT maintains that since the conditions in police
stations are usually inadequate for prolonged periods of detention, such
premises should be used only for very short periods of time. Yet, in reality
states tend to apply their usual maximum time-limits on detention to migration
detainees held in police stations. Is this practice compatible with article
16(1) of the Returns Directive, which is silent with respect to the use of
police stations? Can the Court’s decisions in Bero & Bouzalmate and
Pham be applied by analogy?Arguably, this widespread practice of
the Directive’s member states needs to be assessed by the Luxembourg judges.

Finally,
the Court’s stance in Pham on the
separation obligation clearly puts the Directive’s provisions in line with
international human rights standards. For the Court, it represents a
“substantive condition” (rather than merely a procedural one) for detention of
migrants carried out in prison, without compliance of which such detention,
would, in principle, not be consistent with the Directive. This entails that
when a state cannot ensure separated accommodation in prison, it would not be
able to invoke the derogation clause under article 16(1). However, what does
the separation obligation require? Does it suffice that migrants have cells for
their own (but may have contact with other detainees during meal or recreation
time)? Or, shall authorities set up separate units for immigration detainees to
comply with that obligation? The Court does not explain it. Without clarity on
the Court’s understanding of the separation principle it is difficult to assess
the practice across the EU. In fact, the European Commission’s recent communication on an EU return policy points out that the domestic
legislation of nine countries does not fully require a “strict separation” of
migration detainees from ordinary prisoners. Arguably, the Advocate General’s
views should be followed according to which the separation requirement entails
“the strict separation of migrants from ordinary prisoners by establishing a
separate unit completely isolated from the rest of the prison, offering no
possibility of communication with persons convicted or remanded in custody”
(AG’s Opinion, § 100).